Citation Nr: 0117928
Decision Date: 07/09/01 Archive Date: 07/16/01
DOCKET NO. 98-19 172 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an effective date earlier than June 1, 1998,
for the payment of benefits based on permanent incapacity for
self-support for the veteran's son.
ATTORNEY FOR THE BOARD
D. Jeffers, Counsel
INTRODUCTION
The veteran served on active duty from February 1967 to
January 1969.
The San Juan, the Commonwealth of Puerto Rico, Department of
Veterans (VA), Regional Office (RO) previously denied
entitlement to compensation based on permanent incapacity for
self-support for the veteran's son (helpless child status) in
a December 1981 determination letter. The letter
specifically noted that no action could be taken due to the
fact that his dependent son, M. Jr., would not reach the age
of 18 until March 1993.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a July 1998 decision of the St. Petersburg,
Florida, Department of Veterans Affairs (VA), Regional Office
(RO), which reopened and granted the veteran's claim of
entitlement to helpless child status effective from June 1,
1998. The veteran initiated an appeal with respect to the
effective date assigned, and was issued a statement of the
case in September 1998.
In October 1998, the San Juan VARO received a substantive
appeal from the veteran. The veteran's claims folder was
thereafter permanently transferred to the San Juan VARO as he
now permanently resides in that jurisdiction.
By VA letter dated April 7, 1999, the San Juan VARO informed
the veteran that his appeal was being certified and
transferred to the Board.
Parenthetically, it is noted that the veteran had previously
requested that he be represented by Vietnam Veteran of
America (VVA) for purposes of the present appeal in August
1998. In correspondence dated in March 2001, however, VVA
notified the Board, with carbon copy to the veteran, that it
was withdrawing its representation with respect to the
veteran's appeal. VVA certified that it had not previously
agreed to represent the veteran earlier orally or in writing
on this claim or any other claim before the Board. Insofar
as the VVA did not overtly or impliedly represent the veteran
at any stage of this appeal, the Board accepts VVA's
withdrawal. See 38 C.F.R. § 20.608 (2000).
In April 2001, the Board sent a letter to the veteran
affording him the opportunity to select another
representative, if he so desired, with respect to this
appeal. The letter specifically informed the veteran that if
he failed to respond within 30-days, the Board would proceed
with its review without representation. To date, the veteran
has failed to respond. Therefore, the veteran is considered
to be representing himself in the instant matter.
FINDINGS OF FACT
1. The veteran's son, M. Jr., was born on March [redacted], 1975.
2. The veteran filed his original claim compensation based
on permanent incapacity for self-support for the veteran's
son (helpless child status) in November 1981. Attached to
this claim was a treatment record developed by the Hospital
Universitario de Ninos in 1976.
3. The San Juan VARO denied entitlement to compensation
based on permanent incapacity for self-support for the
veteran's son (helpless child status) in a December 1981
determination letter. The letter specifically noted that no
action could be taken due to the fact that his dependent son,
M. Jr., would not reach the age of 18 until March 1993.
4. An application for reopen of the claim was denied by the
St. Petersburg VARO in March 1996. At that time, the veteran
was provided notification of his appellate rights. The
veteran did not initiate an appeal, and the March 1996
determination became final.
5. The veteran filed another application for reopen on May
15, 1998.
CONCLUSION OF LAW
An effective date earlier than June 1, 1998, for the payment
of benefits based on permanent incapacity for self- support
for the veteran's son (helpless child status) is not
warranted. 38 U.S.C.A. § 5110 (West Supp. 2000); 38 C.F.R.
§§ 3.155, 3.156(a), 3.157, 3.159, 3.403(a)(1) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
The veteran's son, M. Jr., was born on March [redacted], 1975.
The veteran filed his original claim compensation based on
permanent incapacity for self-support for the veteran's son
(helpless child status) in November 1981. Attached to this
claim was a treatment record developed by the Hospital
Universitario de Ninos in 1976.
The San Juan VARO denied entitlement to compensation based on
permanent incapacity for self-support for the veteran's son
(helpless child status) in a December 1981 determination
letter. The letter specifically noted that no action could
be taken due to the fact that his dependent son, M. Jr.,
would not reach the age of 18 until March 1993.
On October 17, 1995, the St. Petersburg VARO received an
application for reopen. Attached to this statement was a
duplicate copy of the treatment record developed by the
Hospital Universitario de Ninos in 1976.
The veteran's claims folder was thereafter permanently
transferred to the St. Petersburg VARO as he had moved to
that jurisdiction.
By VA letter dated January 9, 1996, the St. Petersburg VARO
informed the veteran that additional information was needed
for his application and specifically enumerated the forms of
evidence necessary to complete his application. The veteran
failed to respond.
By VA letter dated March 21, 1996, the St. Petersburg VARO
denied the veteran's application for reopen. The letter
informed the veteran, in pertinent part, that the
disallowance did not mean that he could not still submit the
requested evidence. He was informed that he could do so at
any time. However, if the evidence was not received before
January 9, 1997, one year from the date of his application,
benefits could not be paid prior to the date of receipt of
this evidence. A notification of appellate rights was also
attached. The veteran neither initiated an appeal to the
Board nor did he submit any additional evidence before
January 9, 1997.
The veteran filed a Declaration of Status of Dependents,
which the St. Petersburg VARO construed as a claim for
reopen, on May 15, 1998.
On May 18, 1998, the St. Petersburg VARO received copies of
private treatment records developed by Jackson Memorial
Hospital. These records reflect treatment of the veteran's
son on occasion for cerebral palsy for the period from 1995
to 1997.
Based on the foregoing, the St. Petersburg VARO reopened and
granted the veteran's claim of entitlement to helpless child
status effective from June 1, 1998.
Analysis
After a contemporaneous review of the record, the Board finds
that an earlier effective date for the payment of benefits
based on permanent incapacity for self-support for the
veteran's son (helpless child status) is not warranted.
As noted above, the St. Petersburg VARO denied the veteran's
application for reopen because he failed to submit evidence
in support of his claim. The veteran was informed of this
adverse determination, as well as his procedural and
appellate rights, by VA letter issued in March 1996. The
letter further informed the veteran that the disallowance did
not mean that he could not still submit the requested
evidence. He was informed that he could do so at any time.
However, if the evidence was not received before January 9,
1997, one year from the date of his application, benefits
could not be paid prior to the date of receipt of this
evidence. The record reflects that the veteran neither
initiated an appeal to the Board nor did he submit any
additional evidence before January 9, 1997.
Awards of pension, compensation, or dependency and indemnity
compensation to or for a child, or to or for a veteran or
surviving spouse on behalf of such child, will be effective
as follows: (1) Permanently incapable of self-support (Sec.
3.57(a)(3)). In original claims, date fixed by § 3.400(b) or
(c) or § 3.401(b). In claims for continuation of payments,
18th birthday if the condition is claimed prior to or within
1 year after that date; otherwise from date of receipt of
claim. 38 C.F.R. § 3.403 (a) (2000).
Except as otherwise provided, the effective date of an
evaluation and award of compensation based on a claim
reopened after final disallowance will be the date of receipt
of the claim or the date entitlement arose, whichever is the
later. 38 U.S.C.A. § 5110(a), (i) (West Supp. 2000); 38
C.F.R. §§ 3.400 (b), (h)(2), (q), (r) (2000); see also Link
v. West, 12 Vet. App. 39 (1998)(effective date of a reopened
claim is fixed in accordance with the facts but is not
earlier than the date of receipt of the claim). "Date of
receipt" means "the date on which a claim, information or
evidence was received in [VA]". 38 C.F.R. § 3.1(r) (2000);
see also 38 C.F.R. §§ 3.108, 3.153, 3.201 (2000); Wells v.
Derwinski, 3 Vet. App. 307 (1992).
With respect to the effective date for additional
compensation or pension for dependents that the effective
date will be the latest of the following dates: (1) date of
claim; (2) date dependency arises; (3) effective date of the
qualifying disability rating provided evidence of dependency
is received within one 1 year of notification of such rating
action; (4) date of commencement of veteran's award. 38
C.F.R. § 3.401(b) (2000).
Regardless of VA regulations concerning effective dates of
awards, payment of monetary benefits based on original,
reopened, or increased awards of compensation, pension or
dependency and indemnity compensation may not be made for any
period prior to the first day of the calendar month following
the month in which the award became effective. 38 U.S.C.A. §
5111 (West 1991); 38 C.F.R. § 3.31 (2000).
Here, the uncontroverted evidence shows that the veteran did
not file another application for reopen until May 15, 1998.
Under 38 U.S.C.A. § 5110 (West Supp. 2000) and 38 C.F.R. §
3.400(a) (2000), an effective date for the award of permanent
incapacity for self-support for the veteran's son cannot be
assigned prior to the date of receipt of the reopened claim
in May 1998. Thus, June 1, 1998 is the appropriate date for
initiation of payment of monetary benefits. 38 U.S.C.A. §
5111 (West 1991); 38 C.F.R. § 3.31 (2000). In light of the
governing statutory and regulatory provisions, the effective
date for the award of benefits was properly determined and
the Board finds no basis for the assignment of an earlier
effective date than that assigned by the RO.
The Board has also considered the veteran's contention that
the effective date for the award should be the same date that
benefits were terminated when his son turned 18-years old.
The veteran notes that the medical evidence clearly
establishes that his son has been disabled all of his life.
While the Board has considered carefully and sympathetically
his contentions, it is bound by the governing law and
regulations.
Finally, the Board finds that notwithstanding the recent
amendments to the law enacted by the Veterans Claims
Assistance Act of 2000, no undue prejudice to the appellant
is evident by a disposition by the Board herein, as the
amended provisions of the Act specifically provide that VA is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance will aid in
substantiating the claim. See Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97
(2000) (to be codified as amended at 38 U.S.C. § 5103). For
the reasons set forth above, the Board has found that the
appellant's claim lacks legal merit under the law and
therefore, there is no
reasonable possibility that further assistance or development
of the claim at the
RO-level will result in a grant of the benefit sought.
ORDER
Entitlement to an earlier effective date for the payment of
benefits based on permanent incapacity for self-support for
the veteran's son (helpless child status) is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals